28 Sep 2009

Declaring that no person has a fundamental right to drink all night, the Delhi High Court recently dismissed a petition claimed to be in public interest seeking the intervention of the High Court to the effect that the Regulations made by the Government be changed to all liquor being served in bars whole night.

The applicants pointed out that the regulations relating to serving of liquor in the eating houses, restaurants, bars, places of public entertainment etc. were anomalous as Delhi Police Regulations state that eating houses can remain open till 1.00 a.m. whereas the licences issued to bars and restaurants by other State agencies state that they can serve liquor on all seven days of the week for all twenty-four hours by making payment of extra licence fee. This incongruity was challenged before the Court.

Not seeking to indulge, the High Court dismissed the petition holding that the applicants "do not have a fundamental right to drink all throughout the night". The Court was also quick to caution that "public interest litigation is a weapon which has to be used with great care and circumspection and judiciary has to be extremely careful to see that behind a beautiful veil of public interest, an ugly private malice, vested interest and/or so called publicity seeking is not lurking."

Not only, in this view, was the petition dismissed, but also the applicants were directed to deposit a cost of Rs. 10,000/- with the Prime Minister Relief Fund for having filed the petition which "does not espouse any public cause".

In a recent decision, the Central Information Commission has held that there is no exception to the coverage of the Right to Information Act for the Leader of the Opposition in the Parliament. Deciding in appeal against the denial of information to leading RTI activist Subash Chandra Agrawal by the office of the Leader of Opposition, the Chief Information Commissioner Wajahat Habibullah declared as under;

"In this case we find the office of Leader of the Opposition has been established by Notification issued by Government in the Ministry of Parliamentary Affairs and is financed directly by funds provided by the Govt. of India. It is not material as to who has issued orders of appointment so long as the personnel of the office of Leader of the Opposition function under the Control of the public authority to which they are appointed. In this case that is so, even though the staff may be under the administrative control of the Lok Sabha Secretariat. The office of the Leader of the Opposition, therefore, is a public authority in its own right, which then makes it subject to the obligations of any public authority under the RTI Act"

In a series of three recent decisions, the Delhi High Court has upheld the uniqueness and brand-sanctity of leading companies to grant injunctions against the alleged-imitators of their products.

In the first, holding that the term 'Vardhman Silk Mills' had inconspicuously carried "reputation for its products and services and that its mark 'VARDHAMAN' is distinctive of its business in India" and therefore the use of the name 'Vardhman Sarees' by a competitor was not allowed. The Court also observed that "the mark is a contrived one in relation to silks and garments, and has acquired distinctiveness, connecting it with the plaintiff’s services. The facts revealed to this court are sufficient to hold that the defendant is indulging in infringement of the plaintiff’s trademarks, with the attendant confusion".

The second case related to the allegations that a product (MULEX) was being sold as "a colourable imitation or substantial reproduction of the plaintiffs’ product “CASTROL SUPER TT” / “CASTROL 2T”. The Court noted that "the two competing products with their similar packaging is more than likely to be confused. Although the trade names under which the two competing products are sold are different words i.e. CASTROL and MULEX, the overall appearance of the pouches are similar- the most prominent common feature is the device of “Hockey Sticks”, which is popular and is distinctive of the plaintiffs’ products, although in the plaintiffs’ product the upper band is in red and the lower one in green and vice versa in the defendants’ product but it still more or less appears to be the same. The colour scheme used by the defendants is similar to that used on the plaintiffs’ product. The plaintiffs’ have been able to show that they are the prior users and adopters of the said device. The court has to also bear in mind the sale process as mentioned aforesaid, due to which the likelihood of confusion increases. The consumer in such purchase will barely examine the packaging closely while purchasing the same as the product is hanging at a distance from the consumer and it is a small price item i.e. Rs. 5/-, where two such similar products bear an overall resemblance. The plaintiffs are thus, held entitled for a decree of injunction as is claimed."

In the third decision, the 'India Today' group has successfully sought the direction of the Delhi High Court on the sale of a "newspaper under the name and style of ‘Today News’ in Hindi". The High Court noted, "I have visually examined the infringing name ‘Today’ in Ex.-PW1/30 with that of the registered trademark ‘India Today’ in Hindi Ex.-PW1/27. I do find that defendants have copied the trademark of the plaintiff ‘Today’ in Hindi in an identical and similar manner which, for a common person, visually could appear to be the same. A common man under these circumstances would go for purchasing the paper published by the defendants taking it to be published by the plaintiff company i.e. the same publisher who published ‘India Today’ in Hindi or in English and other magazines carrying the trademark name ‘Today’. Phonetically also, when spoken, the name ‘Today’ as registered would be identical to name ‘Today News’ when spoken."

On these facts, the High Court ruled in the favour of the India Today group, thereby passing "a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants themselves, their agents or any other persons on their behalf from printing/publishing, offering for sale, advertising, directly or indirectly dealing in respect of printing and publication material bearing the name ‘Today’ or ‘Today News’ and from passing off their newspaper or any other publication as the publication of the plaintiff or any other trademark/name/tile/name of a publication which is deceptively similar to the plaintiff’s trademark ‘Today’, in Hindi or any other language and from using the name ‘Today in any manner or in the same logo script or an obvious or fraudulent imitation or a substantial reproduction of the plaintiff’s logo script used in characteristic manner or any other logo script which is imitation and substantially reproduction of plaintiff’s highly artistic work amounting to infringement of the plaintiff’s copyright therein."

"Delay in the execution of the death sentence is itself a dehumanizing and an unreasonable procedure, the death sentence ought to be converted to one for life" argued the lawyer for an accused sentenced to death before the Supreme Court recently.

Taking note of its earlier decisions on the issue and the socio-physiological position of the prisoners living under the shadow of death and the power of the Government to reduce the sentence of death to one of life-imprisonment, the Bench expressed its dis-satisfaction over the state-of-affairs prevailing in the country.

The condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner. We, as Judges, remain largely unaware as to the reasons that ultimately bear with the Government in taking a decision either in favour of the prisoner or against him but whatever the decision it should be on sound legal principles related to the facts of the case. We must, however, say with the greatest emphasis, that human beings are not chattels and should not be used as pawns in furthering some larger political or government policy. We may hark back to our own experiences in life. Even a matter as mundane or trivial as the impending result of an examination or the report of a medical test arising out of suspicion of a serious disease, or the fate of a loved one who has gone missing or a person hanging between life and death on account of a severe injury, makes it impossible for a person to maintain his equanimity or normal way of life. Contrast this with the plight of a prisoner who has been under a sentence of death for 15 years or more living on hope but engulfed in fear as his life hangs in balance and in the hands of those who have no personal interest in his case and for whom he is only a name. Equally, consider the plight of the family of such a prisoner, his parents, wife and children, brothers and sisters, who too remain static and in a state of limbo and are unable to get on with life on account of the uncertain fate of a loved one. What makes it worse for the prisoner is the indifference and ennui which ultimately develops in the family, brought about by a combination of resignation, exhaustion, and despair. What may be asked is the fault of these hapless individuals and should they be treated in such a shabby manner.

The Bench went on to observe "the observations reproduced above become extremely relevant as of today on account of the pendency of 26 mercy petitions before the President of India, in some cases, where the Courts had awarded the death sentences more than a decade ago. We, too, take this opportunity to remind the concerned Governments of their obligations under the aforementioned statutory and Constitutional provisions."

Condemning the practices in the jails where such inmates are kept, the Bench particularly noted,

"Those of us who have had the occasion to inspect a Jail where executions are carried out have first hand knowledge of the agony and horror that a condemned prisoner undergoes every day. The very terminology used to identify such prisoners – death row in-mates, or condemned prisoners, with their even more explicit translations in the vernacular - tend to remind them of their plight every moment of the day. In addition to the solitary confinement and lack of privacy with respect to even the daily ablutions, the rattle on the cell door heralding the arrival of the Jailor with the prospect as the harbinger of bad news, a condemned prisoner lives a life of uncertainty and defeat. In one particular prison, the horror was exacerbated as the gallows could be seen over the wall from the condemned cells. The effect on the prisoners on seeing this menacing structure each morning during their daily exercise in the courtyard, can well be imagined. To cap it all, some of these prisoners, sentenced to death by the Sessions Judge in a case of multiple murders, were later acquitted by the High Court in appeal for lack of evidence."

One can only hope that this recent rebuke by the Supreme Court brings the Government in line and a quick decision is taken over the fate of those condemned to suffer more in jail awaiting their fate ...

In what seemed to be a promise whose implementation would linger on for ever, the Telecom Regulatory Authority of India (TRAI) has finally come out with a concrete game-plan for 'Mobile Number Portability' in the country partially effective from 1st of January 2010 and fully from 20th March, 2010.

Promotion of competition and efficiency in the telecom sector, particularly in the area of mobile telecommunication, requires, inter alia, the facilitation of easy movement of subscribers from one service provider to another or across mobile technologies. Mobile Number Portability (MNP) allows the subscribers to retain their existing mobile telephone number when they move from one Access Provider to another irrespective of the mobile technology or from one cellular mobile technology to another of the same Access Provider, in a licensed service area. The facility of retention of existing mobile telephone number despite moving to a new telecom service provider helps the subscriber maintain contact with his friends/clientele. Introduction of MNP also helps in increasing competition between the service providers and acts as a catalyst for the service providers to improve their quality of service.

Practically speaking, this move would lead to reduction in hassles of requiring one to send messages to pals and family of change in number due to relocation or otherwise. This would also lead to reduction in waste of numbers; numbers being taken for temporary purposes and then discarded thereafter.

On the legal side, let us examine was the regulations have to offer;

- In the Regulations, “Mobile Number Portability” means the facility which allows a subscriber to retain his mobile telephone number when he moves from one Access Provider to another irrespective of the mobile technology or from one cellular mobile technology to another of the same Access Provider;

- The Regulations define service provider (“Access Provider”) to include those 'providing fixed wireline or fixed wireless services';

- The subscriber requesting the change of operator/services would be required to pay 'porting charges' to the new operator/service provider;

- The Regulations provide that all service providers are obliged to "facilitate in its entire network, Mobile Number Portability to all subscribers, both pre-paid and post-paid and shall, upon request, provide the same on a nondiscriminatory basis";

- Porting would be allowed only after a period of 90 days from the first activation or from last porting provided there are no outstanding bills of the earlier operator (called the 'Donor Operator' in the Regulations).

The Regulations also conceive a separate entity being granted a licence by the authorities for being a 'Mobile Number Portability Service Provider' which would actually be responsible for porting the number from one service provider to another.

In all, with the reality of number portability just around a few days to go, one can only say, Thanks TRAI !!!

27 Sep 2009

While we had earlier posted an exclusive note on the proposed 'Goods and Service Tax' (GST) in India, the recent movement amidst the financial circles makes us feel that GST is closer than we think. The Government has promised GST for the first time in 2007 when the then Finance Minister P. Chidambaram stated so in the Parliament and the Government also gave a commitment to the WTO. However things have begun to take shape only after the UPA Government was reelected and Mr. Pranab Mukherjee took charge of the Finance Minister. The matter has been upbeat since then. We already have the first (and may be the final) draft of the direct tax code. Now the recent news reports suggest that the States have indeed come to a concensus on the model of GST and have also agreed that there would prevail two-sets of rates for GST; a standard rate and a lower rate for essential commodities. The ball is now in Centre's court wherein a final decision (atleast in principle) seems due later this month or early next month.

Acting on a Public Interest Litigation filed by an NGO 'Social Jurist, A Civil Rights Group', the Delhi High Court has recently directed the educational bodies to take special measures to promote the education of disabled children. Taking note of the fact that disabled children are being denied admission to educational institutions on grounds of lack of facilities, the Government and concerned departments have been directed to take additional measures to train teachers and staff who can specifically look after the education of disable children. Have a look at the decision.

And if a Concept Paper (in 2005) and a bill on the proposed law (Companies Bill, 2008) was not the end of it, the Ministry of Corporate Affairs has unveiled a new Companies Bill, 2009 to be introduced in the Parliament in the upcoming sessions. The Ministry promises a law, but then the industry has had a lot of them. Its time for replacement of the old Companies Act, 1956 to bring the law to suit the need of the times. Hope the law-makers would appreciate and oblige the industry this time.

"The U.S. Securities and Exchange Commission is considering a ban on flash trading and new rules on credit-rating companies, which drew fire from lawmakers for misreading the risks of investing in toxic mortgage securities" reports Bloomberg. "The SEC proposals include forcing banks selling securities to disclose whether they shopped for ratings among companies for an assessment that would make it easier to sell debt. Such information would tell investors whether ratings underestimate the risk that bonds will default, the SEC said. Commissioners also plan to vote on whether to require the ratings companies to disclose revenue from their biggest clients and that employees provide written statements that their opinions can be used as part of a securities sale. The change may subject ratings companies to lawsuits if investors can prove ratings were based on false information", notes the news-report.

Who exactly has the right to reform (read 'regulate') legal education in India? The Ministry of Law or the Ministry of Human Resource Development, which by default exercises regulatory rights on all educational institutions in India or the Bar Council of India, which under the Advocates Act has been given the responsibility to look after professional standards in the country. The issue has created a log-jam between the two pro-active ministers of the respective ministries with yet no word from the Council. Read more.

Should dogfight videos be protected under the First Amendment (freedom of speech and expression)? This question is exactly what faces the United States Supreme Court next month. A film producer who was sentenced to imprisonment under a United States Federal law that punishes 'depictions of animal cruelty' has challenged the law and the matter is posted for determination before the US Supreme Court next month. Read more.

And finally, we have this article recently posted on SSRN titled 'Legal Education Reform in India: Dialogue Among Indian Law Teachers' covering the past and present of the educational team behind the legal professionals and under-covers their future. The article marks the first issue of the Jindal Global Law Review, the journal of the newly established Jindal Global Law School in Haryana. A good read ... !!!

The father of all courts and perhaps also the oldest-highest court on the planet, the Appellate Committee of House of Lords stopped functioning on 31st of July this year and would now be replaced by the Supreme Court of the United Kingdom coming October. Giving Political Scientists a reason to rethink, United Kingdom finally has separated the judicial and legislative functions which earlier merged in the House of Lords, which performed the dual function of being a part of the legislative wing as well and also hearing cases as the highest court of appeal in the country.

Undone by the Constitutional Reform Act passed by the British Parliament in 2005, the Supreme Court for United Kingdom will take over from Michaelmas term and had already announced its sittings for the coming months, effectively starting from the 5th of October this year. The Supreme Court will now be the highest court of appeal for all matters of English Law, Welsh Law, and Northern Irish Law.

Though in actual practice the judicial functions and legislative functions were separated in the House of Lords (with the members of the judicial committee not attending the sessions of Parliament), yet the main reason of the shift was the argument based on the concept of 'Seperation of Powers'. The proposal to shift were first formally introduced by the British Government in 2003 and thereafter were extensively discussed and debated both in public as well on the houses of the Parliament. Upon consideration of all these fronts, decision was taken to move on and leave behind its historical awe.

The Court would be comprised on 12 judges appointed by Her Majesty by letters patent (a formal charter). In the new set-up, initially the former Law Lords will dawn the benches as the Justices of the Supreme Court with Lord Phillips the former Lord Chief Justice becoming the President of the Supreme Court. Thereafter the judges would be appointed by this procedure.

The Supreme Court has been given its own separate building (and will not be housed like earlier in the Parliament itself) and is expected more to be open for public viewing unlike the earlier forum. The Court has already notified the procedure to be followed, directions for practice before it etc. on its official website (glad that it has one).

In this rather short decision, the Supreme Court has held that a person aggrieved by disconnection of telephone connection cannot by granted compensation to this regard by the Consumer Forum. The case arose in which manner; Mr. Krishnan had a telephone connection, which was disconnected by telephone department for non-payment of telephone bill. He approached the Consumer forum complaining against the disconnection. The Forum agreed and grated compensation to him. The Telephone Department challenged the order before the High Court and the High Court agreed with the Consumer Forum.

This is how the matter was before the Supreme Court. The Court observed that the decision of the lower authorities was incorrect as the provisions of the consumer law did not apply. It observed, "In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred."

It was also observed that "Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach."

Thus in terms of the declaration of law to this effect, any grievance relating to disconnection of telephone etc. can be addressed only by way of arbitration under the Telegraph Act and the consumer forums cannot step in.

"If a party, with open eyes and full knowledge and comprehension of the said provision enters into a contract with a government/statutory corporation/public sector undertaking containing an arbitration agreement providing that one of its Secretaries/Directors shall be the arbitrator, he can not subsequently turn around and contend that he is agreeable for settlement of disputes by arbitration, but not by the named arbitrator who is an employee of the other party", declares the Supreme Court in a recent decision.

Taking note of the challenge, the Court recorded that "there can however be a justifiable apprehension about the independence or impartiality of an Employee-Arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named arbitrator though a senior officer of the government/statutory body/government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a government/statutory corporation/public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to the contract."

The background to the decision was agreement entered into between Indian Oil Corporation and another person appointed as dealer for retail sale of petroleum products. The arbitration clause of the agreement read as under;

“69. Any dispute or a difference of any nature whatsoever or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this Agreement shall be referred to the sole arbitration of the Director, Marketing of the Corporation or of some officer of the Corporation who may be nominated by the Director Marketing. The dealer will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the contract relates or that in the course of his duties or differences. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason the Director Marketing as aforesaid at the time of such transfer, vacation of office or inability to act, shall designate another person to act as arbitrator in accordance with the terms of the agreement. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other than the Director, Marketing or a person nominated by such Director, Marketing of the Corporation as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the Agreement, subject to the provisions of the Arbitration Act, 1940 or any statutory modification of re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause.”

A dispute arose between the parties and the dealer was informed by Indian Oil that in terms of the agreement, "only its Director (Marketing) or an officer nominated by him could act as the arbitrator". It was argued by the dealer that he "did not expect fair treatment or justice, if the Director (Marketing) or any other employee of the appellant was appointed as arbitrator, and that therefore any such appointment would be prejudicial to its interest". It was also argued that "any provision enabling one of the parties or his employee to act as an arbitrator was contrary to the fundamental principle of natural justice that no person can be a judge in his own cause."

The matter, consequently, landed in the docks of the High Court which appointed a retired judge as the arbitrator. The High Court agreed that "The Director (Marketing) of the appellant, being its employee, should be presumed not to act independently or impartially." This is how the matter was before the Supreme Court. In reversing the stand of the High Court, the judges in the Supreme Court observed;

"No party can say he will be bound by only one part of the agreement and not the other part, unless such other part is impossible of performance or is void being contrary to the provisions of the Act, and such part is severable from the remaining part of the agreement. The arbitration clause is a package which may provide for what disputes are arbitrable, at what stage the disputes are arbitrable, who should be the arbitrator, what should be the venue, what law would govern the parties etc. A party to the contract cannot claim the benefit of arbitration under the arbitration clause, but ignore the appointment procedure relating to the named Arbitrator contained in the arbitration clause."

The Court also made a reference to its earlier decisions whereupon the underlying premise in all those decisions was that "when senior officers of government/statutory corporations/public sector undertakings are appointed as Arbitrators, they will function independently and impartially, even though they are employees of such Institutions/organisations."

However what is intriguing is the observation that this presumption of independence and impartiality applies only for Government officials. "The position may be different where the person named as the Arbitrator is an employee of a company or body or individual other than the state and its instrumentalities. For example, if the Director of a private company (which is a party to the Arbitration agreement), is named as the Arbitrator, there may be valid and reasonable apprehension of bias in view of his position and interest, and he may be unsuitable to act as an Arbitrator in an arbitration involving his company." Nonetheless, for the Court did point out that there was nothing illegal in appointment of such persons as arbitrators, public sector organisations should revisit their policy of appointing such employees as arbitrators such that the mandate of independence and impartiality in arbitration matters can be achieved fully.

25 Sep 2009

Subscribers to various magazines would often have come across various booklets/pamphlets distributed along with the magazines/periodicals. In fact with some of these periodicals, certain supplements are a regular feature. These periodicals, at the time of postage, avail concessional rates of stamp-suffixation. A peculiar dispute came up before the Delhi High Court in this regard.

Reader's Digest, a popular periodical in India, was "informed that the booklet containing the advertisement of Toyota Motor Corporation in the form of a calendar, inserted in the Reader’s Digest issue of December 2005 was neither a supplement nor part and parcel of the publication and therefore, the request for mailing of that issue on concessional rates cannot be acceded to" by the Post Master. The Post Master also noted that “the said booklet has been bound and printed separately and merely stapled to the Reader’s Digest" and did not conform to the prescribed conditions to avail the concession. Challenging this, writ petition was filed in the Delhi High Court

Defending the action of the Post Master, Additional Solicitor General Mr. P.P. Malhotra argued that the "advertisement was in the form of calendar which could be pulled out and used separately. It was really not a supplement to the magazine itself. If the advertisement was separated one could still read the magazine. It was contended that the booklet also was violative of Rule 30 of the Rules as no paper or thing could be enclosed in or with a registered newspaper other than an extra supplement in terms of Section 9 of the Act. The quality and size of the paper was different from the main magazine. If the calendar had been transmitted separately through the Post Office network, the sender would have been paid a minimum of Rs.4/- per article. However, respondent was seeking the concessional rate applicable to registered newspapers and this resulted in the appellant being denied its revenue."

Senior Counsel Mr. Rajiv Nayyar, on behalf of Reader's Digest argued that even "if the advertisement pages were pulled out it did not detract from the value of the magazine and only amounted to the advertisement concerned not being distributed." Also, those pages on which the advertisement was carried out were printed on both sides and properly numbered. "The taking out of“such pages may result in enquiries being made from the petitioner as to what was contained on those pages, which the readers would find to be missing".

On the aforesaid, with other interesting observations on the nature of advertisements and the requirements in regard to they being treated as a part of the magazine, on the facts of the case the Court concluded that the Toyata advertisement was indeed a part of the magazine, observing as under;

18. This Court finds that the advertisement in question forms part of the December 2005 issue of Reader’s Digest and the pages of the advertisement have been expressly included in the total number of pages of the said issue. The first and last page of the advertisement is in sequence with the overall pagination of the issue. The name of the magazine and issue month is printed in a prominent position both in the first and last page of the magazine. Further to remove any doubts the readers have been informed in page 1 of the issue that the issue includes the Toyota advertisement which is at pages 55 to 82 of the magazine.

Turning down the plea made on behalf of the passengers the levy of airport development fee from outgoing passengers travelling from Indira Gandhi International Airport, New Delhi at the rate of Rs.200/- from domestic passengers and Rs.1300/- from international passengers for a period of three years by the Delhi International Airport Pvt. Ltd., the Delhi High Court has allowed DIAL to continue levying the development fee.

Challenging that DIAL could not levy the fee (and only the Airport Authority of India was authorized to do so) and also that no services were being rendered by DIAL towards this additional fee collection, a society in the name of 'Resources of Aviation Redressal Aviation' filed a writ petition in the Delhi High Court. It was argued that the law allowed only the Airport Authority to levy a tax of such nature and DIAL being a private person could not have been empowered to collect such tax.

The Government argued that permission was given by it to DIAL to collect the fees such that it could garner viable resources for the performance of the requisite functions under the Operation, Management and Development Agreement (OMDA) and that too for a limited period (of 36 months). Further, DIAL was constituted as an instance of public-private partnership initiated ('PPP' as we call it), a joint-venture of which Airport Authority held 26 percent shares and it was in this perspective that the OMDA granted "exclusive right and authority for performing the functions of operating, maintaining, developing, designing, constructing, upgrading, modernizing, financing and managing of the Indira Gandhi International Airport and to perform services and activities constituting the aeronautical services and non-aeronautical services".

The High Court observed that the airport development fee "though described as fee it is more akin to a charge or a tariff for the facilities provided by the Airports Authority of India". The "consideration from persons who use the facilities would flow from the ownership of the authority of the facilities. Where facilities are established in discharge of a statute, the authority is entitled to charge for such facilities as per contractual arrangements with those who use the facilities."

Brushing aside the argument raised by the Society, the Court held that "A statute, as is well known, must be construed having regard to the legislative intent. The legislative intent in amending the Act was to facilitate the process of improvement of standard of services and facilities at the airports by bringing in infusion of private sector investments as also for restructuring of airports. The Statement of Objects and Reasons specifically says that '…. significant private sector investments in such project require an effective legal framework within which the investors would feel safe and secure about their operational and managerial independence.' If Mr. Bobde’s contention is accepted, it would frustrate the whole governmental policy of promoting private initiative. Such an interpretation which would defeat the very object and purpose of the amendment has to be avoided."

On these facts and the appreciation of law, the petition of the Society was dismissed, allowing DIAL to continue levying the airport development fee and rightly so, for if one wishes to enjoy the facilities of the airport (have a look for yourself the changes made between the earlier terminals and the new terminal at the Delhi airport and perhaps you would agree), then one must also be willing to pay for the same. Have a look at the decision.

22 Sep 2009

The difference between 'law' and 'equity' has traditionally been explained as equity supplementing the black-and-white letter of the law. Where law is silent, equity steps in and even where the law provides for a particular treatment of a particular situation, equity might step in to avoid harsh consequences. The traditional distinction between 'courts of law' and 'courts of equity' has been on this grounds only where the person not having a right under the notified cannons of law approached the courts of equity for relief. The things are different now as these courts have merged now and courts of law are expected to deliver their decisions taking note of the equitable concerns and reasonably estimating the consequences of their decisions. The consequences of this merger are for one to find.

A recent decision of the Supreme Court relating to medical termination of pregnancy of a mentally retarded child perhaps would throw some light on the continuing non-adoption of equitable concerns on judicial decisions. The case before the Supreme Court related to the challenge (in appeal) to a decision passed by the High Court of Punjab and Haryana. The Supreme Court reversed the decision of the High Court which had "ruled that it was in the best interests of a mentally retarded woman to undergo an abortion. The said woman ('victim') had become pregnant as a result of an alleged rape that took place while she was an inmate at a government-run welfare institution located in Chandigarh. After the discovery of her pregnancy, the Chandigarh Administration, which is the respondent in this case, had approached the High Court seeking approval for the termination of her pregnancy, keeping in mind that in addition to being mentally retarded she was also an orphan who did not have any parent or guardian to look after her or her prospective child. The High Court had the opportunity to peruse a preliminary medical opinion and chose to constitute an Expert Body consisting of medical experts and a judicial officer for the purpose of a more thorough inquiry into the facts. In its order the High Court framed a comprehensive set of questions that were to be answered by the Expert Body. In such cases, the presumption is that the findings of the Expert Body would be given due weightage in arriving at a decision. However, in its (subsequent) order the High Court directed the termination of the pregnancy in spite of the Expert Body's findings which show that the victim had expressed her willingness to bear a child."

Forbearing the considerations involved, the Supreme Court noted that; "The rationale behind our decision hinges on two broad considerations. The first consideration is whether it was correct on part of the High Court to direct the termination of pregnancy without the consent of the woman in question. This was the foremost issue since a plain reading of the relevant provision in the Medical Termination of Pregnancy Act, 1971 clearly indicates that consent is an essential condition for performing an abortion on a woman who has attained the age of majority and does not suffer from any `mental illness'. As will be explained below, there is a clear distinction between `mental illness' and `mental retardation' for the purpose of this statute. The second consideration before us is that even if the said woman was assumed to be mentally incapable of making an informed decision, what are the appropriate standards for a Court to exercise `Parens Patriae' jurisdiction? If the intent was to ascertain the `best interests' of the woman in question, it is our considered opinion that the direction for termination of pregnancy did not serve that objective. Of special importance is the fact that at the time of hearing, the woman had already been pregnant for more than 19 weeks and there is a medico-legal consensus that a late-term abortion can endanger the health of the woman who undergoes the same."

For starters, 'Parens Patriae' relates to the obligation cast on the nation/state to take due care of its citizens/subjects as a legal guardian of any individual who requires its support and where none is forthcoming from other quarters.

Before the High Court, the recommendation of a three-member board constituted by the Director of a Government Medical College had been that in its opinion, taking note of the consequences of continuation of pregnancy and the capability of the victim to cope with the same, it was best advised to terminate the pregnancy. However the problem arose there was no clear statutory basis for proceeding with the abortion and thus the Government approached the High Court.

Nonetheless the High Court, taking extra measures to ascertain the factual position, constituted another committee to examine the physiological and medical position of the girl to bear the child. The Committee clearly noted that even though "she knows that she is bearing a child and is keen to have one. However, she is unable to appreciate and understand the consequences of her own future and that of the child she is bearing." In these circumstances the High Court directed the termination of her pregnancy.

However, the Supreme Court held a different view. The judges noted that they "disagree with this conclusion since the victim had clearly expressed her willingness to bear a child. Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter. We have adopted this position since the applicable statute clearly contemplates that even a woman who is found to be `mentally retarded' should give her consent for the termination of a pregnancy."

The Supreme Court took note of the provisions of the 'Medical Termination of Pregnancy Act' enacted by the Parliament and observed that "the ‘Best interests’ test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights." ... "The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to be mentally incompetent. In the present case the victim has been described as a person suffering from ‘mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The findings recorded by the Expert Body indicate that her mental age is close to that of a nine−year old child and that she is capable of learning through rote−memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the ‘Best Interests’ test alone which should govern the inquiry in the present case and not the ‘Substituted Judgment’ test."
Thereupon the Court solely went by the factor that the alleged victim had shown interest in bearing the child and further that she had already been pregnant by 20 weeks by the time the matter was in Supreme Court, wherein termination of pregnancy may cause physical harm to her. The Court also referred to the famous decision of the United States Supreme Court in Roe v. Wade albeit on a different point than what it is famous for. The Court also did not see the medical experts in good light in as much as it observed that "while we must commend the counsel for their rigorous argumentation, this case also presents an opportunity to confront some social stereotypes and prejudices that operate to the detriment of mentally retarded persons. Without reference to the present proceedings, we must admit to the fact that even medical experts and judges are unconsciously susceptible to these prejudices."

The decision of the Court was also took note of the non-so-good condition of the government run institutions for the mentally challenged noting that "institutional upbringing tends to be associated with even more social stigma and the mentally retarded person is denied the opportunity to be exposed to the elements of routine living. For instance, if the victim in the present case had received the care of a family environment, her guardians would have probably made the efforts to train her to avoid unwelcome sexual acts. However, the victim in the present case is an orphan who has lived in an institutional setting all her life and she was in no position to understand or avoid the sexual activity that resulted in her pregnancy. The responsibility of course lies with the State and fact−situations such as those in the present case should alert all of us to the alarming need for improving the administration of the government−run welfare institutions."

While the High Court went beyond the provisions of law in exercise of its equity jurisdiction, the same did not find favour in the Supreme Court. The Supreme Court finally adopted what the law provided and declined to traverse the boundaries set forth by the Parliament. It concluded as under;

"The substantive questions posed before us were whether the victim’s pregnancy could be terminated even though she had expressed her willingness to bear a child and whether her ‘best interests’ would be served by such termination. As explained in the fore− mentioned discussion, our conclusion is that the victim’s pregnancy cannot be terminated without her consent and proceeding with the same would not have served her ‘best interests’. In our considered opinion, the language of the MTP Act clearly respects the personal autonomy of mentally retarded persons who are above the age of majority. Since none of the other statutory conditions have been met in this case, it is amply clear that we cannot permit a dilution of the requirement of consent for proceeding with a termination of pregnancy. We have also reasoned that proceeding with an abortion at such a late stage (19−20 weeks of gestation period) poses significant risks to the physical health of the victim. Lastly, we have urged the need to look beyond social prejudices in order to objectively decide whether a person who is in a condition of mild mental retardation can perform parental responsibilities."

In our opinion, perhaps the decision would be the correct appreciation of the Parliamentary law what is curious is that no account has been made for the child which would be born from such pregnancy. The Court may be right to hold that she has a right to bear the child but what happens when she is incapable of doing so? In such a situation, does the child-so-born also suffer being unable to receive the tender love and care of the mother? A lot of other questions also appear to an inquisitive mind, but in as much as we have this decision, these would be questions to which law does not have an answer excepting to oblige the Government to look after and thus the vicious circle of the so-called 'institutional care' continues.

18 Sep 2009

In what can be termed as having ramifications manifold for extradition laws, the Supreme Court has recently delivered this decision interpolating the 'interpretation of the roles and responsibilities of the CBI vis-à-vis the provisions of the Extradition Act, 1962'.

The facts of this case were really interesting. Mr. B, an Indian citizens went the US, pursued studies there and landed with a job. Got married in India and took his wife along to US. They had a daughter and stayed together for another while. Disputes cropped up and the wife sought asylum in the United States. Later she filed for divorce and custody of her child in a US court, which passed an order in her favour granting the custody of the child. The husband, however, came to India along with the daughter. On the basis of her complaints, warrants were issued for arrest of her husband by the US police authorities.

The wife married another person and thereafter filed a case in India for custody of her daughter. That remaining pending, the US police issued a warrant for arrest of the former husband which was transmitted to India through Interpol.

The former husband approached the High Court challenging the validity of the extradition process initiated by the CBI on the basis of the red-corner notice issued by the Interpol. The High Court declined to interfere observing that High Court should not set a precedent which could be used to hamper investigation of crimes which have global dimensions and for the investigation of which, Red Corner Notices are critical tool. Thus the matter reached the Supreme Court.

Taking note of the argument made by various parties, the Extradition Treaty between India and US, the Extradition law of India, the Supreme Court noted the following;

>>> "It is beyond any doubt or dispute that no request for extradition has been received by the Government of India. It could act only when a request is received. It is accepted at the Bar that Red Corner Notice by itself cannot be a basis of arrest or transfer of an Indian citizen to a foreign jurisdiction. There is furthermore no dispute that the Act cannot be bypassed in red corner cases concerning Indian citizens. Hence the Extradition Treaty is subject to the provisions of the Act. It also stands admitted that the Appellant being an Indian citizen is entitled to enforcement of his fundamental rights. The legal position that a person cannot be arrested without any authority of law again is not denied or disputed. Thus, the arrest of a person must be effected in terms of the provisions of the Act. A person wanted for an offence in a foreign jurisdiction may be arrested on fulfillment of the following conditions: (i) That the offence should be counted as one by Indian Law as well, and (ii) The person must be liable to be arrested in India – either under any law relating to extradition, or otherwise."

>>> "Article 12 (of the Treaty) provides that provisions of provisional arrest according to which in a case of urgency, the Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. It also provides that the facilities of International Criminal Police Organization (Interpol) may be used to transmit such a request. However, when a request for provisional arrest in terms of Article 12 is communicated, it must satisfy the requirement of Section 34B of the Act. Such request from a foreign country must be accompanied by the requisite documents and not a communication from INTERPOL alone. It will bear repetition to state that an arrest can be effected at the instance of the Central Government only when such a request is made by the foreign country and not otherwise."

>>> "We have noticed hereinbefore that the Treaty itself provides that the same is subject to any Municipal Laws of the country. It is thus for the State concerned to take a decision in regard to such notices, keeping in view the Municipal Laws. The steps to deal with the request contained in the notices, thus, must abide by the domestic laws of the concerned country. Recognition of the request as the basis for an arrest operate an internationalization or tans-nationalization of a foreign administrative decision. The formal admission procedure by Interpol cannot be the single cause of internalization. It is just a precondition for the recognition by the other states."

>>> "The organizational system of issuing International notices forms the backbone of (Interpol's) functioning. The Member countries in terms of notices share critical crime related information. They concern individuals wanted for serious crimes, missing persons, unidentified bodies etc. Such notices contain comprehensive identity particulars of the individuals concerned including the physical description, fingerprinting, occupation and all other relevant information including the offence with which the person has been charged, reference to the law under which the charge was made or the conviction was obtained etc. The notices issued by the INTERPOL are of six types – Red Notice ; Yellow Notice ; Blue Notice; Green Notice ; Black Notice and Orange Notice. It also contemplates Interpol-United Nations Special Notice. We are concerned herein only with Red and Yellow Notices. A Red Corner notice is issued to seek the provisional arrest of a wanted person. However, it by itself does not have the effect of warrant of arrest. It is issued for persons, against whom a national or international court has issued a warrant of arrest. It is solely a request of the issuing entity to provisionally or finally arrest the wanted person for extradition. A Yellow notice, however, is issued for finding a missing person or to identify people who are not capable of identifying themselves. It is an “International Missing Person Notice”. It is issued specially to locate minors."

>>> "The notices issued by INTERPOL are not considered as administrative decisions on individual cases with transnational effect. They are not construed as an “international administrative act.” They lack a character of regulation. They do not constitute an international arrest warrant and they are not in any other form binding the individuals concerned legally. They, however, gain de facto with special relevance to the Human Rights through multiplication of its recipients. In fact Interpol's "red notices" often function as de facto international arrest warrants and countries issue warrants immediately upon receipt of such a notice. However, they do so with the understanding that a request for extradition with supporting evidence will follow the red notice, without delay. The suspect must then go through the standard extradition process. The bottom line is that "warrants to arrest suspects must have legal authority in the jurisdiction where the suspect is found" and Interpol red notices do not have such authority. They are primarily a means of facilitating communication between police agencies and the success of the Interpol system still depends entirely upon voluntary cooperation. They, however, do not entirely lack external effects. A number of states recognizes the Red Notices as an official request for the arrest of a person. However, such a request does not require the action of national police authorities and does not provide a legal basis thereto."

>>> "Keeping in view the Constitution of INTERPOL vis-à-vis the Resolutions adopted by the C.B.I. from time to time, although a Red Corner Notice per se does not give status of a warrant of arrest by a competent court. It is merely a request of the issuing authority to keep surveillance on him and provisionally or finally arrest the wanted person for extradition. The provisions of the Act and the Treaty are required to be given effect to. Whenever a request is received from INTERPOL the authority must act on behalf of the Central Government."

Thereon, the Court concluded that "we have already held above that the Municipal Laws of a country reign supreme in matters of Extradition. It is thus for the State concerned to take a decision in regard to such Notices, keeping in view the Municipal Laws of the country. The High Court was, therefore, in our opinion, clearly wrong in holding that a Red Corner Notice should not be tinkered with. When a person complains of a violation of his Fundamental Right and/or otherwise of his fundamental right he is entitled to the right of judicial review. It ought not to be forgotten here that the dispute between the Appellant and the Respondent No. 6, being essentially a Matrimonial dispute, is a private dispute and no criminal extraditable offence can be made out of the same, in the absence of a specific request for extradition. ... A fundamental Right of a citizen whenever infringes, the High Courts having regard to their extraordinary power under Article 226 of the Constitution of India as also keeping in view that access to justice is a human right would not turn them away only because a Red Corner Notice was issued. The Superior Courts in criminal cases, thus are entitled to go into the manner in which such Red Corner Notice, if any, is sought to be enforced and/or whether the local police is threatening a citizen of India with arrest although they are not entitled to do so except in terms of the provisions Act as and when applicable."

On a passing reference, the Court also commented upon the legal status of international treaties in India. It observed, "India follows the doctrine of dualism and not monoism. We may, however, hasten to add that this Court, however, at times for the purpose of interpretation of statute has taken into consideration not only the treaties in which India is a party but also declarations, covenants and resolutions passed in different International Conferences. The Act as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive. But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail."

In a interview featuring two stalwarts in their own right, the core of the discussion in 'the future of lawyers'.

Looking forward to the nature of work and structure of law firms 10 years from now; examining the persistence of the partnership structure amidst law firms; inter-weaving flexibilities like multi-professional firms; nature of services on offer; etc. are just some of the key topics which Professor David Wilkins (from the teaching fraternity) and Cyril Shroff (Managing Partner of a top law firm in India) discuss.

An interesting discussion, offering path-breaking insights telling of the times to comes and changes all stakeholders must be ready to face in this dynamic profession. Have a look at the complete text which we just took note of, thanks to the dependable friend.

17 Sep 2009

The new Minister of Environment and Forest Ministry seems to be a man in hurry but with a purpose. A look at the recent updates on the Ministry's website gives cogent evidence to this effect. But then what concerns this post is the proposal unveiled today to establish a 'National Environmental Protection Authority'.

The proposal "discusses the need for an effective model of environmental governance in India, which includes the establishment of a National Environment Protection Authority", the reason being that the "gaps in the institutional mechanisms and implementation has not kept pace with the legislative and policy evolution". Accepting that the judiciary has done much more in the area of environmental protection than the Government itself, the proposal seems to have been made to tackle "emerging environmental challenges, including river cleaning, management of wastes, hazardous substance and plastics management, dealing with chemical contamination, monitoring compliance with environmental clearances, etc."

The paper suggest three dimensional changes in the existing policy of environmental law and regulation; the legislation and policy making remaining with the Ministry of Environment and Forests; regulation, monitoring and enforcement action being the responsibility of the proposed National Environmental Protection Authority; and the adjudication of disputes thereto being made by the proposed National Green Tribunal.

The role of the Protection Authority has been discussed in quiet detail in the paper. Have a look at the proposal and may be even send your opinion to the Ministry.

The entire country is watching (with fingers crossed, ofcourse) the fate of the litigation pertaining to the challenge to the decision of the Government of Uttar Pradesh to construction statutes in public parks relating to the incumbent Chief Minister and others. The drama has all the more unfolded with the Supreme Court directing stay on the construction activity and the yet construction continuing as per the media reports.

The Supreme Court took note of these reports and came out in stern words that its order be complied and any such construction activity, if continuing, be stopped within almost immediate effect. Allowing the parties to prepare to make suitable representations, the matter has been posted for tomorrow when the State Government, newspapers and others would file in their sworn statement stating the nature of the activity which took place. The Court has also requested the Solicitor General of India to assist the Court as amicus curie.

"It appears that registering a domain in cyber space in one's name is not easy, as Mr. Arun Jaitley, the Plaintiff recently discovered", notes Delhi High Court in its recent order on the petition of Mr. Jaitley who approached the Court challenging the action of another, for having booked the domain name "www.arunjaitley.com" for itself.

Though only prima facie (and not conclusively determinative), the observations of the High Court are really intriguing. It noted,

"The present suit raises very significant questions in the realm of intellectual property law concerning the protection that a person is entitled to, particularly when the person's name had acquired distinctiveness, goodwill and reputation. It also raises an important question whether the right to one's own name is part of the bundle of 'personal' rights enshrined in the right to life under the Article 21 of the Constitution of India, and Article 17 of the International Convenant on Civil and Political Rights. Is a person entitled to protection of such a right and all other rights incidental to and stemming from that right viz., the rights to publicity and to privacy. It appears to this Court that the Plaintiff has more than a stateable prima facie case." "The Plaintiff has prima facie demonstrated, with the help of all several documents, that Defendant No.3 is 'squatting' on his name with the intention of exploiting it for profit. If not injuncted, the domain name www.arunjaitley.com could well be 'purchased' by any person. Such person could then use it for any purpose detrimental to the goodwill and reputation of the Plaintiff. The balance of convenience in restraining the Defendants from transferring, alienating or offering for sale the domain name 'arunjaitley.com' to any third party and from creating any third party interest in the said domain name 'arunjaitley.com' appears to be in favour of the Plaintiff at this stage."

Being of this view, the Court granted an injunction against the defendants from allowing any one to purchase the said domain name. The issue is indeed interesting for there haven't been many cases in India dealing with Cyber-squatting. What is more interesting is the fact that the cases is representing by eminent intellectual property lawyers from both sides. One will have to wait the final outcome of the suit and hope that the law on the issue get a clarity.

The Motivation !!!

Rule 46 of the 'Standards of Professional Conduct and Etiquette' prescribed by the Bar Council of India requires that "Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

Sharing this "vision for a better-world" and serving to the Humanity, this blog is a small attempt by a group of like-minded lawyers to spread the word on "LAW" across the society.

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